STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) ALCOHOLIC BEVERAGES AND TOBACCO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1097

)

UPTOWN INC D/B/A 100 WEST )

WASHINGTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on July 22, 1983, in Orlando, Florida.

APPEARANCES

For Petitioner: James N. Watson, Jr., Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Mr. George Cooper

4627 Parma Court

Orlando, Florida 32811

ISSUE

This case involves the issue of whether the Respondent's special restaurant license for the sale of alcoholic beverages should be suspended, revoked or otherwise disciplined for multiple violations of the beverage laws and rules relating to the operation of a licensed premises under a special restaurant license.

At the formal hearing, the Respondent was represented by Mr. George Cooper, the president and 50 percent owner of the Respondent corporation. After proper inquiry, it was determined that Mr. Cooper was in fact a proper representative of the corporation. At the formal hearing, the Respondent requested an opportunity subsequent to that date to present evidence on its own behalf. The Respondent, as grounds for that motion, indicated that it had been attempting to retain counsel and had been unable to do so. It was stipulated and agreed by and between the Petitioner and the Respondent that the Petitioner would present its evidence at the formal hearing as scheduled and that following the hearing the Respondent would be given an opportunity if it desired at a subsequent hearing time and date to present its evidence. Pursuant to this stipulation, it was ordered by the Hearing Officer that the Respondent submit in writing within

10 days of July 22, 1983, a request to schedule another hearing date if the Respondent desired to present further evidence. Respondent failed to file any written pleading and failed to notify the Hearing Officer as to whether further proceedings were necessary and whether Respondent In fact intended to present further evidence. On August 25, 1983, the undersigned Hearing Officer served upon the Petitioner and Respondent an Order to Show Cause as to why a Recommended Order should not be entered upon the evidence presented by the Petitioner at the previous hearing on July 22, 1983. That Order reflected that upon failure of the parties to file a pleading showing cause as to why such a Recommended Order should not be entered that the undersigned Hearing Officer would proceed to enter a Recommended Order based on the evidence presented at the July 22, 1983, hearing. Respondent was served by mail with a copy of that order to Show Cause and failed to file any response to that Order. Therefore, this Recommended Order is being entered upon the evidence presented by the Petitioner and the cross examination of that evidence by the Respondent at the formal hearing.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent was the holder of beverage license number 58-01528, SRX, Series 4COP. This license was issued to the licensed premises at 100 West Washington, Orlando, Florida. This license is a special restaurant license.

   
   

2. On November 5, 1982, Beverage Officer James Jones, accompanied by another beverage officer, inspected the licensed premises of the Respondent. This was an SRX (special restaurant) inspection and the officers counted chairs, silverware, and dishes, and inventoried the food on the licensed premises.

   
   

3. The count revealed 140 chairs, 46 coffee cups, 121 plates, 45 glasses,

   116 knives, 53 forks, and 111 spoons. An inventory of the food on the premises revealed 55 chicken wings, 10 pounds of hamburger patties, 1 1/2 pounds of hamburger, 5 tomatoes, 1/4 pound of margarine, 1 potato, 5 loaves of bread, 1/4 slab of ribs, 30 pounds of french fries, 2 heads of lettuce, 1 1/2 pounds of potato chips, 10 carrots, 1 pound of sliced cheese, 2 1/2 spanish onions, 13 hamburger buns and 1/2 pound of diced cheese. There was no other food on the licensed premises.

   
   

4. This inspection occurred at approximately 11:00 or 11:30 p.m. There was one bartender, one waitress, and a cook on duty. At this time, they were serving only chicken wings, hamburgers and french fries. There were no full course meals prepared or sold while the officers were at the licensed premises. There was not sufficient food at the licensed premises to serve 200 full course meals.

   
   

5. Respondent renewed its license on September 30, 1982, and delivered a check to the District Office of the Division of Alcoholic Beverages and Tobacco in the amount of $1,750.00 as payment for the renewal fee. This check was deposited for payment and was returned not honored due to insufficient funds. The Respondent was notified by the Division of the returned check and failed to pay the necessary fee. The license was retrieved by the Division on November 8, 1982, and remains in the possession of the Division. At the time of renewal on September 30, 1982, the Respondent had been notified in writing of pending charges against its license which could lead to revocation or suspension of that license.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

   
   

7. Section 561.29, Florida Statutes (1981) empowers the Division of Alcoholic Beverages and Tobacco to suspend, revoke or otherwise discipline the beverage license of any licensee found to have violated the beverage laws of Florida or the rules promulgated thereunder.

   
   

8. Counts 1 and 2 of the Notice to Show Cause charge the Respondent with having violated subsections (d) and (e) of Rule 7A-3.15(3). Those subsections provide:

   
   

   1. The business is advertised and held out to the public to be a place where meals are prepared and served, space being provided with adequate kitchen and dining room equipment and having employed such number and kinds of

      employees for preparing, cooking and serving meals for guests; the primary preparation

      of such restaurant shall be for the preparation, cooking and serving of meals and not for the sale of alcoholic beverages.

   2. The restaurant shall be equipped with the necessary china and tableware and seating to handle the minimum seating special act.

      
      

      A violation of those rules also constitutes a violation of Section 561.29(1)(e), Florida Statutes (1981).

      
      

9. House Bill 1891 is a special act dated June 23, 1955, which relates to the issuance of beverage licenses in the City of Orlando and Orange County, Florida. House Bill 1891 provides that in order to qualify for a special restaurant license in the City of Orlando and Orange County, the restaurant must have accommodations for service of 200 or more patrons at tables. This is the special act referred to in the rule quoted above.

   
   

10. The facts in the instant case clearly establish that Respondent did not have on November 5, 1982, sufficient seats, silver, tableware, or food to provide service to 200 or more patrons. There was also insufficient food for the preparation and service of full course meals as defined in Rule 7A-3.15(2), Florida Administrative Code. The Respondent, therefore, is guilty of violations of Rule 7A-3.15(3)(d) and (e) and thus Florida Statute 561.29(1)(e)(1981).

    
    

11. Respondent was also charged with abandoning its license after written notice that revocation or suspension proceedings had been brought against the license. In this regard, Respondent is charged with violating Section 561.15(3)(a) Florida Statutes (1981) which provides:

1. The division may suspend or revoke the license under the Beverage Law of, or may refuse to issue a license under the Beverage Law to:

   1. Any person, firm, or corporation the

license of which under the Beverage Law has been revoked or has been abandoned after written notice that revocation or suspension proceedings had been or would be brought against the license.

The Respondent was aware when it renewed its license on September 30, 1982, that revocation or suspension proceedings were pending against its license. The check given by Respondent as payment for the renewal fee was returned dishonored due to insufficient funds. The Respondent was notified of the returned check and did not then pay the renewal fee. The license was retrieved by the Division on November 8, 1982, and remains in the possession of the Division. The failure on the part of the Respondent to pay the renewal fee constitutes abandonment and is a violation of Florida Statute 561.15(3)(a)(1981).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED

That the Respondent's beverage license be revoked.

DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983.

COPIES FURNISHED:

James N. Watson, Jr., Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Mr. George Cooper 4627 Parma Court

Orlando, Florida 32811

Mr. Jack Wallace Division of Alcoholic

Beverages and Tobacco Post Office Box 17735 Orlando, Florida 32860

Docket for Case No: 83-001097

Orders for Case No: 83-001097